Gomez v. U.S. Parole Comm'n

• Decision Date: 15 July 2016
• Docket Number: No. 15-60449,15-60449
• Parties: Oscar Gomez, also known as Carlos Eduardo Guzman, Petitioner v. United States Parole Commission, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

829 F.3d 398

Oscar Gomez, also known as Carlos Eduardo Guzman, Petitioner

v.United States Parole Commission, Respondent.

No. 15-60449

United States Court of Appeals, Fifth Circuit.

Filed July 15, 2016

Judy Fulmer Madewell, Bradford W. Bogan, Assistant Federal Public Defenders, John P. Calhoun, Supervisory Assistant Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Petitioner.

Paula Kei Biderman, Kate Elizabeth Dwyre, Esq., Assistant Attorney General, Helen H. Krapels, U.S. Parole Commission, Washington, DC, for Respondent.

Before SMITH, BARKSDALE, and COSTA, Circuit Judges.

RHESA HAWKINS BARKSDALE

, Circuit Judge:

For this challenge to a sentence, following a prisoner's being transferred from Mexico to the United States under the Treaty on Execution of Penal Sentences (the transfer treaty), at issue are the United States Parole Commission's (USPC) contesting our jurisdiction; and transferred-prisoner Oscar Gomez' asserting the USPC's determination of his release date was substantively unreasonable, in the light of his claim it failed to account for the abuse he suffered while imprisoned in Mexico. Our court has jurisdiction; the petition for review is DENIED.

I.

In 2003, in Tijuana, Baja California, Mexico, Gomez, an American citizen and national, was convicted of the crime of homicide and injuries. According to witness statements, Gomez and two other individuals drove up to a medical clinic, and asked two men sitting outside what neighborhood they were from. After one of the men responded, Gomez reportedly took out a firearm and began shooting. A woman and her daughter were shot as they were walking nearby; the child died from her injuries. Gomez was found guilty by a Mexican court, and sentenced to 24 years, five months, and 25 days' imprisonment. He was convicted separately for possession of a firearm, and completed that sentence prior to beginning his homicide sentence at issue in 2006.

In 2014, pursuant to the transfer treaty, a prisoner-exchange agreement between the United States and Mexico, Gomez was transferred to an American prison to serve the remainder of the sentence he began serving in 2006. See The Treaty Between the United States of America and the United Mexican States on the Execution of Penal Sentences, 25 Nov. 1976, U.S.–Mex., 28 U.S.T. 7399

(implemented by 18 U.S.C. § 4100 et seq. ). Following his transfer, the USPC was required to “determine a release date” for Gomez, as if he had been convicted in the United States for a similar offense. 18 U.S.C. § 4106A(b)(1)(A).

In June 2014, a probation officer prepared a post-sentence investigation report (PSR), recommending, inter alia , the most analogous offense to Gomez' homicide and injuries conviction was second-degree murder, in violation of 18 U.S.C. § 1111

. Under the advisory Sentencing Guidelines, his base-offense level for that violation was 38, and it was recommended he receive a two-level reduction for acceptance of responsibility, for a base-offense level of 36; his criminal-history category was I. The corresponding advisory Guidelines sentencing range was 188–235 months.

The PSR included, inter alia , Gomez' reports of physical and sexual abuse suffered while imprisoned in Mexico, and identified that information as a factor that might warrant a “departure” from the Guidelines range. Gomez objected to the PSR, contending: the recommended range was excessive within the meaning of 18 U.S.C. § 3553(a)

because, in the light of the abuse described in the PSR, a “variance/departure” should be granted.

In March 2015, a USPC examiner conducted a transfer-treaty-determination hearing, at which Gomez described the abuse at length, detailing: several beatings by prison guards in seven prisons over 12 years; at least four stabbings by guards and inmates; water torture by guards; and one rape facilitated by guards (Gomez stated he was not certain who raped him, but that he “was [in] a dark room, ... hear[d] the keys, and the guard opened up the cell”). Following the hearing, the examiner recommended: the most analogous offense was second-degree murder, and the Guidelines sentencing range was 188–235 months; but, the “prison conditions and torture and abuse” described by Gomez warranted a lower sentence. The examiner recommended, inter alia , Gomez' being released after service of a 156-month, below-Guidelines sentence.

Upon the examiner's submission of that recommendation to the USPC for a final determination, a commissioner stated in a 28 April 2015 memorandum that he “d[id] not agree [with the recommendation] by the examiner to depart from the applicable guideline[s sentencing] range”, after considering that range and the § 3553

sentencing factors. The commissioner cited Gomez' “involve[ment] ... in the death and injuries to innocent people”. In a final-transfer-treaty determination, the USPC ordered Gomez be released on 6 December 2023, after service of 204 months' imprisonment (which included time served in Mexico). A second commissioner joined the first in signing the memorandum, the final determination, and an attached order pronouncing sentence.

II.

In 1976, the United States and Mexico, “desiring to render mutual assistance in combating crime” and in order “to provide better administration of justice by adopting methods furthering the offender's social rehabilitation”, executed the transfer treaty, which, inter alia , allows American citizens convicted in Mexico to serve their sentences in the United States. 28 U.S.T. 7399

; see also 18 U.S.C. § 4100. As described above, upon receipt of a transferred prisoner, the USPC is charged with determining that prisoner's release date. 18 U.S.C. § 4106A(b)(1)(A).

“This Court exercises review over a Transfer Treaty prisoner's [release date] as it would over that of an ordinary federal prisoner sentenced in district court.” Bender v. United States Parole Comm'n , 802 F.3d 690, 693 (5th Cir. 2015)

, cert. denied , ––– U.S. ––––, 136 S.Ct. 493, 193 L.Ed.2d 359 (2015). In that regard, our court reviews the reasonableness of a sentence for abuse of discretion. Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). First considered is “whether the sentencer committed significant procedural error, such as ... failing to consider the § 3553(a) factors”. Bender , 802 F.3d at 697 (quoting Gall , 552 U.S. at 51, 128 S.Ct. 586 ). If there is no procedural error, next examined is “the substantive reasonableness of the sentence, taking into account the totality of the circumstances”. Id. (internal quotation marks omitted). “A sentence within the properly calculated Guidelines range is presumptively reasonable, and ‘[t]he presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors' ”. Id. (alteration in original) (quoting United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009) ).

In challenging only the substantive reasonableness of his within-Guidelines sentence, Gomez maintains: his 204-month sentence failed to take into account the abuse he suffered while imprisoned in Mexico; and the 156-month sentence recommended by the hearing examiner is sufficient to achieve the goals provided in § 3553

. First addressed, however, is the USPC's challenge to our jurisdiction.

A.

Two days before oral argument, the USPC submitted a letter pursuant to Federal Rule of Appellate Procedure 28(j)

(regarding citation of supplemental authorities), contending for the first time our court lacks jurisdiction to review the denial of what the USPC claims was Gomez' request for a “downward departure”. In support, the USPC cited Willis v. United States Parole Commission, where a transferred prisoner contended the USPC erred by mistakenly believing it lacked the authority to depart downward from the Guidelines on the basis of abuse he suffered while imprisoned abroad. 260 F.3d 623, 2001 WL 650516, at *2 (5th Cir. 2001)

(unpublished).

There, our court dismissed the appeal for lack of jurisdiction, ruling: “[w]hen the Commission understands that it has the authority to depart from the Guidelines, but determines that the case at hand does not warrant departure, we may not ‘second guess' or otherwise question the Commission's decision”. Id. at *3

. Notably, the transferred prisoner in Willis did not make any assertion about the reasonableness of his sentence. See id.

Prior to United States v. Booker

, courts were required to impose sentences within the ranges set forth in the Guidelines, unless a specific exception applied. 543 U.S. 220, 233, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Where a “court found such an exception and exercised its limited discretion to sentence outside the applicable Guidelines range, the court was said to be engaging in a ‘departure’ from the Guidelines”. United States v. Mejia

–

Huerta , 480 F.3d 713, 721 (5th Cir. 2007). Pursuant to Booker, however, the Guidelines are advisory only, resulting in our “court['s] recogniz[ing] three types of sentences: (1) a sentence within a properly calculated Guidelines range; (2) a sentence that includes an upward or downward departure as allowed by the Guidelines; and (3) a non-Guideline[s] sentence or a variance that is outside of the relevant Guidelines range”. United States v. Brantley , 537 F.3d 347, 349 (5th Cir. 2008) (internal quotation marks omitted).

In other words, “ ‘[d]eparture’ is a term of art ... and refers only to ... sentences imposed under the framework set out in the Guidelines”. United States v. Teel , 691 F.3d 578, 591 (5th Cir. 2012)

(quoting Irizarry v. United States , 553 U.S. 708, 714, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008) ). A “variance”, conversely, is “outside the [G]uidelines framework ... and stems from 18 U.S.C. § 3553(a) ”. United States v. Jacobs , 635 F.3d 778, 782 (5th Cir. 2011...